Peter Sunde, co-founder of BitTorrent tracking site The Pirate Bay, and subject of the documentary TPB AFK. Via watch.tpbafk.tv

“If you had to do it all over again, would you do anything differently?” a Reddit user asked Peter Sunde, co-founder of BitTorrent tracking site The Pirate Bay and star of the documentary TPB AFK, which premiered on Friday at the Berlin International Film Festival, during a Reddit AMA on Saturday.

Sunde was referring to his Pirate Bay co-founder, Gottfrid Svartholm, who’s presently imprisoned in Sweden. Prosecutors used evidence recovered from Svartholm’s hard drive against Sunde, Svartholm and two other defendants. All four were ultimately found guilty on charges of “promoting other people’s infringements of copyright laws.”

TPB AFK chronicles their trial; the documentary is up on YouTube, or available as a torrent on TPB itself.

Would encrypting his hard drive have saved Svartholm, Sunde and their co-defendants from standing trial at all?

In the United States at least, encrypting his hard drive wouldn’t necessarily have made any difference for Svartholm, says Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, a digital civil liberties organization that has done extensive work on encryption issues.

It would have been easy for someone as tech-savvy Svartholm to encrypt his hard drive in such a way that law enforcement couldn’t crack it. But the government can compel the owner to decrypt their own hard drive.

Lawyers like Fakhoury have argued that providing a decryption combination is different than handing over a set of keys — it constitutes a form of testimony against yourself, and the Fifth Amendment protects against that kind of thing. “You have the right not to incriminate yourself — you don’t have to provide incriminating testimony,” Fakhoury says.

The exception is if authorities know with a degree of specificity what is on your hard drive, like the exact file name or where it is stored. In those cases, Fakhoury says, the Fifth Amendment doesn’t apply.

What happens if you refuse to give the password anyway? “Typically what will happen is you can either a be found in contempt of court,” and that could mean jail time, Fakhoury says. “The second thing is you could be charged with obstruction of justice” — which could also mean jail time.

Despite all that, Fakhoury says, “Encryption is always a good idea.”

He recommends using an email encryption client like PGP and advises that people should be especially wary of using cloud storage and, if they use it anyway, to be very familiar with storage facility’s terms of use.

Most important, Fakhoury says, is just use common sense: “Be careful what you store online and what you say online.”